Supreme Court Justice, Dr. Juris Arnfinn Bårdsen* Religion in The

Supreme Court Justice, dr. juris Arnfinn Bårdsen* Religion in the public sphere – Norway Rencontre des juges européens, Bristol 24 November 2017 1. One’s conception of life and the transcendental is considered a precious asset – un bien précieux – for everybody, not only for the religious believer but also for the atheist, agnostic, sceptic and the unconcerned. Religion in the broader sense is however, not only a highly sensitive personal matter, but moreover a phenomenon that strongly influences our relationship with others and the society as a whole. Along with expanding social, ethnical and cultural diversity, religion and belief, and the manifestation of it in the public sphere, can cause new challenges to the way we live together – le vivre ensemble. It can create serious tensions and even harsh destructive conflicts. Hate speech towards religious minorities has become a pan-European public concern. There is a strong call for integration of migrants and a genuine need to circumvent religious diversity from developing into a threat to public security and social stability. We experience how deeply religious matters permeates our history, culture and the daily life, and that core values of tolerance, respect, equality and non-discrimination are being confronted. 2. Historically, Norway has been a homogeneous society also when it comes to religion. Most citizens have been Lutheran Protestants, in accordance with what was until very recently the official state religion in Norway. Now that we are inevitably developing in the direction of more religious multiplicity even in Norway, I can assure you that the questions that we are dealing with during our meeting here in Bristol are as topical in Norway as they are in most other European states. * I thank Monica Magdalena Zak and Reidun Ellen Engh for their assistance during the preparation of this paper. – 2 – 3. One of the issues currently under debate is, of course, the use of religious symbols and clothing in the public sphere, in particular the use of hijab, niqab and burqa. The Norwegian National Institution for Human Rights addressed this topic specifically in its 2016 report to the Parliament, urging for a broad, inclusive and balanced process prior to any bans being introduced (see NIM Annual Report 2016 page 76–78). The general policy in Norway has as its starting point that the need to respect the freedom of religion without any discrimination implies that also the use of religious symbols must be tolerated. 4. However, there is the assumption that one can, and to a certain decree should, restrict the use of headscarves due to weighty considerations connected to a person’s public or professional function. However, no such case has yet reached the Supreme Court. Moreover, there is a general scepticism towards headscarves covering the face. To this end, case law from the ECtHR accepting bans on the use of such headscarves, including the ruling 11 July 2014 S.A.S. v. France, has been embraced. Several municipalities – including the capital, Oslo – have already introduced a ban on face-covering headscarves in public schools. And the Government has as recently as in June 2017 made a proposal for a national ban in all educational institutions on the use of headscarves covering the face. 5. The core of the international legal framework is, also regarding Norway, the UN Covenant on Civil and Political Rights (CCPR), and the European Convention on Human Rights (ECHR). Moreover, several other international instruments are relevant, among them the UN Covenant on Economic, Social and Cultural Rights, the UN Convention on the Rights of the Child and the UN Convention on the Elimination of all forms of Discrimination against Women. All these five international instruments are as such, and along with the relevant international case law, incorporated into domestic Norwegian law, with a higher rank than statutory and customary law, see the Human Rights Act 1999 section 2 and 3. Accordingly, if any conflict should occur, the conventions shall prevail. Moreover, Article 92 of the Norwegian Constitution prescribes that every governmental body, including the courts, are obliged to respect and secure the convention rights in accordance with their higher rank. 6. Norway’s challenges as to the international protection of the freedom of religion have first and foremost played out under CCPR Article 18 (4) and ECHR Protocol 1 Article 2, according to which the state parties undertake to respect the liberty of parents to ensure the religious and moral education of their children in conformity with the parents’ own convictions. – 3 – 7. The deeper historical and cultural explanation to this conflict rests in the fact that there have been close ties between the church and the state ever since the reformation, and that the Norwegian Constitution, accordingly, already from the start in 1814 established the Evangelical Lutheran Religion as the state religion. Originally, Article 2, second sentence of the Constitution stated: “The Evangelical Lutheran Religion remains the State’s official religion. Residents who subscribe to it are obliged to educate their children likewise.” The effect of having a state religion was that the church as such was not considered to be a separate body apart from the state: According to the Norwegian Supreme Court’s interpretation of Article 16 of the Norwegian Constitution as it then stood, the King (the Government) was the head of the church, also when it came to internal issues such as confession and liturgy, see Rt- 1987-473. The King – and, according to Article 12 of the Constitution, a minimum of half of his cabinet – had to be members of the church. For the general adult population, membership was, however, voluntary. But children became automatic members if their parents were members, but they were nonetheless able to opt out at the age of 15. By the turning of the millennium approximately 85 % of the Norwegian population were members of the church. 8. Instruction in the Christian faith has been part of Norwegian school curriculum since 1739. In fact, it was for a long period only the church that provided education at all – thus, in Norway, the historical and cultural ties between religion and education are indeed close. From 1889 onwards, members of religious communities other that the church were, however, entitled to be exempted in whole or in part from the teaching in the Christian faith. From 1969, children of parents who were not members of the church, were entitled – upon their parents’ request – to be exempted in whole or in part from. They were instead offered lessons in the philosophy of life. In 1998, the Norwegian primary- school curriculum was changed, with two separate subjects – Christianity and philosophy of life – being replaced by a single subject covering Christianity, religion and philosophy, known as KRL. Under the 1998 Education Act, a pupil could be granted exemption only from those parts of KRL which the parents considered amounted to the practising of another religion or adherence to another philosophy of life. The parents had to explain their view, and it was in practice very difficult to have an effective partial exemption, as the KRL itself leaned heavily towards religious instruction. – 4 – 9. A group of parents that had been denied exemption for their children, all members of the Norwegian Humanist Association, challenged KRL before the Norwegian courts, on the basis that the right to be exempted was too narrowly construed, thus amounting to a breach of CCPR Article 18 and ECHR Article 9 and Protocol 1 Article 2. The challenge was without success, see the Norwegian Supreme Court’s judgment Rt-2001-1006. 10. One part of the group then lodged a communication with the United Nations Human Rights Committee, see Leirvåg and others v. Norway (1155/2003). On 3 November 2004, the Committee expressed the view that the framework of KRL, including the regime of exemption, as it had been implemented in respect of the complainants, constituted a violation of Article 18 (4) of the Covenant. The Committee stressed that any instruction in subjects as the general history of religion and ethics must be given in a neutral an objective way, and that public education that includes instruction in a particular religion or belief is inconsistent with Article 18 (4), unless provision is made for non- discriminatory exemptions or alternatives that would accommodate the wishes of the parents. The partial-exemption arrangement under KRL did not meet this standard. 11. A second part of the group of parents complained to the ECtHR, see the Grand Chamber judgment 29 June 2007 Folgerø and others v. Norway. In that judgment, the ECtHR concluded – along lines comparable to the Human Right Committee’s – that Protocol 1 Article 2 had been violated, in particular as to the partial-exemption arrangement being poorly designed. Firstly, parents needed to be adequately informed of the details of the lesson plans to be able to identify problematic activities and to notify the school in advance. Secondly, it was a condition for obtaining partial exemption that the parents give reasonable grounds for their request. Information about personal religious and philosophical conviction concerned some of the most intimate aspects of private life, and there was a risk that the parents might feel compelled to disclose to the school authorities intimate aspects of their own religious and philosophical convictions. Thirdly, for a number of activities, for instance prayers, the singing of hymns, church services and school plays, observation by attendance could replace involvement through participation, the basic idea being that the exemption should relate to the activity itself, not to the knowledge to be transmitted through the activity. However, in the Court’s view, this distinction between activity and knowledge must not only have been difficult to practice, but it also seemed to have substantially diminished the effectiveness of the very right to a partial exemption.

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